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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
File No. EB-02-CG-522
Mercury Broadcasting Company, Inc. )
) NAL/Acct. No.
200332320004
Station WKBF (AM) )
Moline, Illinois ) FRN: 0001 6778 06
FORFEITURE ORDER
Adopted: September 28, 2004 Released: September 30,
2004
By the Assistant Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture of eight thousand eight hundred
dollars ($8,800) to Mercury Broadcasting Company, Inc.
(``Mercury'') for willful and repeated violations of
Sections 17.50 and 17.57 of the Commission's Rules
(``Rules''). The noted violations involve Mercury's
failure to comply with the prescribed antenna structure
painting requirements and failure to register a change in
tower ownership.
2. In January 24, 2003, the Commission's Chicago,
Illinois Field Office (``Chicago Office'') issued a Notice
of Apparent Liability for Forfeiture (``NAL'') to Mercury
for a proposed forfeiture in the amount of thirteen
thousand dollars ($13,000).1 Mercury responded to the NAL
on February 24, 2003.
II. BACKGROUND
3. Mercury is the licensee of AM radio station WKBF,
Rock Island, Illinois. Mercury owns that station's two
antenna structures (#s 1009199 and 1009200), which are
located at 53rd Street and Old Colona Road, Moline,
Illinois. The Commission's Antenna Structure Registration
(``ASR'') database lists each structure's height as 108.2
meters above ground level (355 feet). The registration
requires appropriate marking and lighting.
4. On July 31, 2002, an agent from the Chicago Office
inspected WKBF's antenna structure site.2 The agent
observed that both antenna structures' paint was badly
faded, and sections of the towers had paint missing,
exposing the bare metal. On August 5, 2002, the agent
discovered that the Commission ASR data base listed
another company as the licensee for WKBF. Based on this
inspection and information, on August 7, 2002, the Chicago
Office issued a Notice of Violation (``NOV'') to Mercury
for violations of Section 17.50 of the Rules, for failure
to comply with the prescribed antenna structure marking,
and Section 17.57, failure to register a change in tower
ownership. On August 16, 2002, Mercury responded to the
NOV. It did not dispute the noted violations, but instead
submitted information documenting that it was in the
process of having the towers painted, and that it had
updated its tower registration with the Commission.3
5. On January 24, 2003, the Chicago Office issued
an NAL for a forfeiture in the amount of $13,000 for
apparent willful and repeated violations of Sections 17.50
($10,000) and 17.57 ($3,000) of the Commission's Rules.
Mercury responded to the NAL on February 24, 2003. In its
response, Mercury did not dispute the findings of the NAL;
rather, Mercury sought a reduction or cancellation of the
proposed forfeiture based on its good faith and prompt
remedial efforts, the nature and circumstances of the
violations, and its record of compliance with the
Commission's Rules.
III. DISCUSSION
6. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the
Communications Act of 1934, as amended (``Act''),4 Section
1.80 of the Rules,5 and The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087
(1997), recon. denied, 15 FCC Rcd 303 (1999) (``Policy
Statement''). Section 503(b) of the Act requires that the
Commission, in examining Mercury's response, take into
account the nature, circumstances, extent and gravity of
the violation and, with respect to the violator, the
degree of culpability, any history of prior offenses,
ability to pay, and such other matters as justice may
require.6 As discussed below, we have considered
Mercury's response to the NAL in light of these statutory
factors and have found that reduction of the proposed
forfeiture is warranted.
7. Section 17.50 of the Rules provides that antenna
structures requiring painting shall be cleaned or
repainted as often as necessary to maintain good
visibility. Mercury admitted that its antenna structures
needed repainting. Section 17.57 of the Rules requires
the owner of an antenna structure for which an ASR number
has been obtained to notify the Commission of any change
in the ownership information. Mercury concedes that it
did not do so following an ownership change. Section
312(f)(1) of the Communications Act7 which applies to
violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that ``[t]he term
`willful,' ... means the conscious and deliberate
commission or omission of such act, irrespective of any
intent to violate any provision of this Act or any rule or
regulation of the Commission authorized by this Act . .
.''8 Similarly, Section 312 (f)(2) of the Act provides
that ``the term `[r]epeated,' . . . , means the commission
or omission of such act more than once or, if continuous,
for more than one day.''9 We find that Mercury's failures
to keep its antenna structure painted to maintain good
visibility, and to immediately notify the Commission of
any change in ownership information were willful and
repeated.
8. In support of its claim of good faith, Mercury
submitted documentation that it had begun negotiations to
have the towers repainted several months before an agent
from the Chicago Office inspected the towers in the
presence of Mercury's Chief Engineer and Engineer. After
reviewing this supporting documentation, we conclude that
a reduction of $2,000 of the proposed forfeiture amount is
appropriate based on Mercury's good faith efforts made to
keep its towers in conformance with Section 17.50 before
being notified of the violations by the Commission
staff.10
9. Mercury also claims that the nature and
circumstances of its violations reveal ``no threat to
public safety,'' thus warranting reduction of the
forfeiture amount. Specifically, Mercury notes that
because the towers were registered [in another name], its
inadvertent failure to register the ownership change was
not a grave offense, nor was its failure to repaint the
towers because Mercury repainted them so quickly upon
Commission notice. After reviewing the facts of this
case, we find that Mercury's violations are not mitigated
because there was no showing of harm to the public. The
Commission has emphasized the importance of tower
registration in order to be able to contact the tower
owner in case a problem arises.11 Moreover, it is well
established that a licensee cannot absolve itself of the
failure to operate in compliance with Commission Rules by
simply claiming that there was no harm done to the
public.12 Similarly, Mercury's claim of inadvertence for
failure to notify the Commission of the ownership change
does not excuse or mitigate its violation of the Rules.
As the Commission has stated, ``inadvertence . . . is at
best ignorance of the law,'' and is not considered a
mitigating circumstance.13 Additionally, Mercury's
remedial actions based on correcting both its Sections
17.50 and 17.57 violations after the violations were
discovered by the Commission, are not a mitigating
factor.14
10. Finally, Mercury points out, and a search of Commission
records confirms, that Mercury has a history of compliance
with the Commission's rules, and that in its 12 years as
an FCC licensee, it has not been cited for any rule
violations for its seven other broadcast stations.15
After considering Mercury's past history of compliance, we
conclude that a further reduction of two thousand, two
hundred dollars ($2,200) of the forfeiture amount is
appropriate.
11. We have examined the Mercury's response to the NAL
pursuant to the statutory factors above, and in
conjunction with the Policy Statement as well. As a
result of our review, we conclude that Mercury willfully
and repeatedly violated Sections 17.50 and 17.57 of the
Rules. We find that the proposed forfeitures against
Mercury should be reduced to the amount as indicated
above.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and
1.80(f)(4) of the Rules,16 Mercury Broadcasting Company,
Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of
eight thousand eight hundred dollars ($8,800) for willful
and repeated violation of Sections 17.50 and 17.57 of the
Rules.
13. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days
of the release of this Order. If the forfeiture is not
paid within the period specified, the case may be referred
to the Department of Justice for collection pursuant to
Section 504(a) of the Act.17 Payment of the forfeiture
must be made by check or similar instrument, payable to
the order of the Federal Communications Commission. The
payment must include the NAL/Acct. No. and FRN No.
referenced above. Payment by check or money order may be
mailed to Forfeiture Collection Section, Finance Branch,
Federal Communications Commission, P.O. Box 73482,
Chicago, Illinois 60673-7482. Payment by overnight mail
may be sent to Bank One/LB 73482, 525 West Monroe, 8th
Floor Mailroom, Chicago, IL 60661. Payment by wire
transfer may be made to ABA Number 071000013, receiving
bank Bank One, and account number 1165259. Requests for
full payment under an installment plan should be sent to:
Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.18
14. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail Return Receipt
Requested to Mercury Broadcasting Company, Inc., 115 East
Travis, San Antonio, Texas 78205.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
_________________________
1 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332320004 (Enf. Bur., Chicago Office, released January 24,
2003).
2 The NAL, at paragraph 2, identifies the day of inspection as
July 3, 2002. The Notice of Violation and the investigative
record, however, correctly identify the inspection date as July
31, 2002.
3 The documentation included a list of companies to which tower
painting quotes were sent out on April 30, 2002, and a bid
acceptance dated July 24, 2002 and signed July 29, 2002.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 47 U.S.C. § 312(f)(1).
8 See Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991).
9 47 U.S.C. § 312(f)(2).
10 See Access.1 Communications Corp. - NY, 18 FCC Rcd 22289 (Enf.
Bur. 2003) (reducing a forfeiture where a licensee was able to
demonstrate that it had taken significant steps towards having
its antenna structure repainted before the Commission inspected
the tower).
11 See American Tower Corporation, 16 FCC Rcd 1282 (2001).
12 In PJB Communications of Virginia, Inc. (7 FCC Rcd 2088, 2088
(1992), the Commission did not downwardly adjust a forfeiture
based on wireless carrier's claims that its rule violation
[failure to file required notifications to maintain authorized
operation of one-way paging facilities] did not adversely affect
the public. The Commission further explained that licensees have
a duty to operate in accordance with Commission rules, and cannot
absolve themselves of the failure to do by simply claiming that
there was no harm done to the public. The Commission maintained
that there is an independent public interest in licensees
complying with the rules.
13Southern California Broadcasting Co., supra, note 8 at 4388.
14 See Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994), ``corrective
action taken to come into compliance with Commission rules or
policy is expected, and does not nullify or mitigate any prior
forfeitures or violations.''
15 Mercury cites four different cases where the Commission
reduced a forfeiture based on the licensees' history of overall
compliance, and one case based on the Commission's discretion.
Because these cases support the action we are taking in this
case, no further discussion is necessary.
16 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
17 47 U.S.C. § 504(a).
18 See 47 C.F.R. § 1.1914.